WND EXCLUSIVE

Milk farmer goes after state conviction

Cleared of accusations he sold food without license, but hit on technical violation

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

A jury’s conviction of a Wisconsin farmer for removing state health agency security tape from his supply of food is being appealed to establish the “absolute right to private, unregulated, direct trade with a local raw milk producer.”

The Farm-to-Consumer Legal Defense Fund filed the appeal on behalf of Vernon Hershberger, who was acquitted of multiple charges that he sold his milk to friends and acquaintances without a state license.

The appeal was filed in District 4 of the Wisconsin Court of Appeals. Likely, the case will be reviewed by a three-judge panel.

Hershberger was found guilty on only one of four criminal counts, the violation of a hold order.

He argued that he didn’t need the licenses to provide food to people who are part of his farm produce club, and the jury agreed.

The conviction for violating the state’s “hold” order came after the order was redacted before being submitted to the jury.

Officials said the redacted portion of the order said the food was “misbranded or adulterated.” Attorneys believe Hershberger would have presented a convincing argument that the food was neither adulterated nor misbranded.

“Had the jury been given enough information to understand the totality of the circumstances, we believe they wouldn’t have convicted Vernon of violating the holding order. His conviction was not consistent with the jury’s acquittal on the other three counts,” said attorney Elizabeth Rich.

The Farm-to-Consumer Legal Defense Fund said the verdict “sets a major precedent in distinguishing between those producing and selling food to the public and those producing and distributing food through a private contractual arrangement (e.g., agreement with a food buyers club).”

The organization said the state “claimed broad regulatory powers over operations … asserting that it has jurisdiction over any dairy farm producing milk where any of the milk leaves the farm premise.”

“With its powerful dairy lobby, Wisconsin has been one of the most draconian states in limiting raw milk sales and distribution,” the organization said.

“I tried to work with people. I would have been happy to sit down with them and come up with a workable solution, and I would still do that,” he said.

Wrote blogger David Gumpert: “Make no mistake, Vernon Hershberger won a huge victory. … The state threw everything it had at this humble father of 10 children, and when it was over, its guys in the dark suits scampered out of the courtroom in the darkness of the night after a jury of 12 ordinary Americans handed them their heads on a platter.”

WND has reported on the dispute that has swept across the country, including when the Weston A. Price Foundation criticized a federal study that blamed outbreaks of illness on raw milk. The Centers for Disease Control report said outbreaks because of raw milk were 150 times greater than outbreaks attributed to pasteurized milk, citing statistics from a 13-year period ending in 2006.

But the Price Foundation said the results were invalid because of the way the federal report’s authors “cherry picked” data.

Sally Fallon Morell, president of the Weston A. Price Foundation, said the study listed an average of 315 illnesses a year “from all dairy products for which the pasteurization status was known.”

“Of those, there was an average of 112 illnesses each year attributed to all raw dairy products and 203 associated with pasteurized dairy products,” she said of the study period ending in 2006.

“The CDC’s data shows that there were significant outbreaks of foodborne illness linked to pasteurized dairy products the very next year, in 2007: 135 people became ill from pasteurized cheese contaminated with e.coli, and three people died from pasteurized milk contaminated with listeria,” the Price Foundation report said.

And shortly before the time frame for the study, there were 16,000 confirmed cases of Salmonella traced to pasteurized milk from a single dairy, the foundation reported.

The foundation suggested that the time frame was picked by government reporters to portray raw milk in a negative light.

Circuit Court Judge Patrick J. Fiedler said the families who reported they were boarding their cows for a fee and then getting the milk, instead were running a “dairy farm.”

The judge wrote:

The court denied plaintiffs’ motion for summary judgment, which means the following:

(1) no, plaintiffs do not have a fundamental right to own and use a dairy cow or a diary (sic) herd;
(2) no, plaintiffs do not have a fundamental right to consume the milk from their own cow;
(3) no, plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;
(4) no, the Zinniker plaintiffs’ private contract does not fall outside the scope of the state’s police power;
(5) no, plaintiffs do not have a fundamental right to produce and consume the foods of their choice; and
“(6) no, the DATCP did not act in an ultra vires manner because it had jurisdiction to regulate the Zinniker plaintiffs’ conduct.